Recently, it was found that incorrectly calibrated and faulty DUI breath testing machines could effect thousands of DUI cases in Philadelphia. I was recently interviewed about the DUI breath test problem in Philadelphia by The Inquirer (philly.com).
The Intoxilyzer 8000 is used for DUI breath test in Philadelphia and in many places in PA.
As a PA DUI Attorney and breath testing expert, I have found that the Philadelphia issue is not an isolated incident, it is evidence of a culture of ignorance, carelessness and a lack of oversight.
For example, there was a period of time where a police department in Lancaster was using simulator solution that was beyond its expiration date effecting all tests given for grater than six months last year. We have found individual issues with acceptance criteria and calibration of tests.
The problem is truly systematic. That is not hyperbole. It stems from the fact that Pennsylvania is the least-regulated state in terms of the verification of BAC and BrAC data in the country. The data is not readily available for inspection by anyone. Sometimes, it takes defense lawyers to go into court and get an order of court after a hearing. Sometimes it is ordered to be turned over. Sometimes it is not. It is a sad state of affairs.
If you are doing good quality and valid testing, then why hide the data? Why not show it off?
Other states are more enlightened. They put the data online so every one can see and everyone can double check.
- Florida: http://www.fdle.state.fl.us/Content/getdoc/aba0d82a-8d55-4172-b89f-19c1a0d0d4c4/I8000-Misc-Records.aspx
- Washington: http://breathtest.wsp.wa.gov/
- Ohio: http://publicapps.odh.ohio.gov/BreathInstrument/ and http://www.odh.ohio.gov/odhPrograms/at/alc_drug/Solution.aspx
- South Carolina: http://www.sled.sc.gov/ImpliedConsent
- Washington DC has committed to do so. The full hearing can be found here: http://oct.dc.gov/services/on_demand_video/channel13/February2011/02_28_11_JUDICI.asx or go to here http://oct.dc.gov/services/on_demand_video/on_demand_March_2011_week_1.sh
But access to the data and the lack of oversight is just the tip of the iceberg.
Here in Pennsylvania, there is no central purchasing of breath testing equipment. Each jurisdiction and each police department and each police officer can decide what type of breath test device to use. There is no central system to verify that the machines after purchase actually work as designed before they are deployed. There is no regular method of preventive maintenance. Routine maintenance is not performed and there is no regulation authority to take careless departments to task. Officers are left to regulate and calibrate the machines on there own without the proper amount of training needed. There is no formal instruction in correlation coefficients or other basic issues of metrology (the science of measurement).
This problem is not unique to one department or one machine. I have seen faulty machines in police departments all across Pennsylvania. This is one of the reasons that every one of the DUI attorneys at The McShane Firm is a certified expert in breath testing and has the experience to cross-examine and challenge the results of faulty machines.
If you have any questions on breath testing or DUI in PA, please call 1-866-MCSHANE to speak with a qualified Pennsylvania DUI lawyer.
[Blogger's note and update 3/23/2011: We have been up-to-date on this developing story. The issue as far as we see it is going to effect literally thousands of convictions. The "issue" goes back to the switch over to the Intoxilyzer 8000 which occurred in September 2009.]
When I tell people that I am a PA DUI Lawyer, I am often times met with disdain because people think that everyone charged with a DUI is really guilty. This is really not the case as I have pointed out many times on this blog. There are many innocent people who are charged with PA DUI violations due many factors. One of these factors is bad breath testing equipment.
Pennsylvania Police are Wrongly Charging People with PA DUI violations
Philly Flunks Own Breathalyzer Test
Dozens of DUI cases in Philadelphia are set to be re-tried because of a bad breathalyzer, officials said on Wednesday.
Apparently, one breathalyzer used by police was showing incorrect blood-alcohol levels, MyFoxPhilly reports.
The district attorney’s office says in cases where people were found guilty solely because of the test, they will get a new trial.
In cases where other evidence was obtained, such as witness testimony or blood test, those defendants would not be reevaluated.
The problem could affect about 200 convictions.
Keeping a breath machine properly calibrated is really not that difficult. There are routine checks that need to be made and if there are problems, the manufacturers offer support. That is why this gross negligence is so appalling. This recklessness shows that these officers do not care about performing good police work. We are trusting cops who can’t keep their breath machines in order to keep our families and communities safe.
As an experienced Pennsylvania DUI attorney, I have witnessed the attitude of our police force on many occasions. I have also blogged extensively on the problems with police in PA in a DUI context. The core issue is that there are a lot of police officers who are under-trained, a few are lazy, and others are careless. They are wrongly charging innocent people with DUI. It is then up to us PA DUI attorneys to protect the rights of the citizen accused.
If you are wrongly charged with a DUI in PA please call 1-866-MCSHANE for a free detailed consultation.
Every Friday we take a look at some of the most commonly asked questions about Pennsylvania DUI so we can clear up any misconceptions and provide you with the most up-to-date and accurate information about PA DUI laws and related topics. Today:
Dear PA DUI Lawyer,
My mother is 54 and she was arrested yesterday and charged with a DUI. She’s diabetic and her sugar was low so she pulled over to the shoulder of the road so she could slowly make it home. The cops stopped her arrested her and when they took her to the station they tested her on a breath machine and they said she was over the limit?! But she never drinks! What’s going on here? I’m so confused.
If you are a diabetic falsely charged with a PA DUI contact The McShane Firm
Diabetics being falsely charged for DUI is an issue that is fairly common. According to some estimates one in seven drivers on the road in Pennsylvania are diabetics. The unfortunate thing is that police officers receive very little DUI training and often misinterpret medical conditions like2 as DUI. This coupled with the fact that the breath machines used all over PA are woefully inaccurate and do not uniquely measure ethanol (drinking alcohol) as opposed to other forms of alcohol. It is a universal design flaw, which creates a false positive in your mother’s case.
The condition you mother was suffering from is called Hypoglycemia- when blood sugar is abnormally low. The police probably looked at her sluggish behavior and interpreted that as being drunk. I have argued on this blog and all across PA that police officers need to be better trained so they can recognize health conditions like diabetes and understand that this is not a DUI.
On top of the obvious human failure here, is an amazing technological failure of the breath machine. To understand the problem first you’ll have to understand how breath machines work.
Breath machines measure alcohol in an indirect way. The machine sends infrared energy in the form of a beam through the breath sample and measure how these beams are absorbed. Once the light is absorbed the machine thinks “this must be alcohol”. The more light that is absorbed, the more ethanol (drinking alcohol) the machine reports. The problem here is that ethanol is not the only compound that absorbs infrared beams this way at the wavelengths examined by these machines. In fact, any chemical compound that contains the methyl group will absorb the beams much in the same way ethanol does. This includes chemicals like acetone and isopropyl alcohol.
The problem here is that when the body experiences low blood sugar, as is the case with many diabetics, the body changes its chemical processes and extra acetone is created as a bi-product (ketones). The person is in a state of ketoacidosis. It has been well documented that acetone created as the result of low sugar can create an emission of ketones which then results in emission of isopropyl alcohol, creating a false positive on breath machines like the Intoxilyzer 5000 (commonly found in Harrisburg and all over PA).
Your best bet here is to find a good defense attorney to review your mother’s DUI case. If you are in Central PA, please call The McShane Firm at 1-866-MCSHANE to meet the best DUI lawyers in PA.
Please remember to forward this post to any diabetic you know so that they are aware of this condition.
If you would like to ask a question, please submit it via the contact us link.
The PA DUI Attorney Challenge Part 2: How Technical are DUI cases?
There are close to 50,000 lawyers in Pennsylvania. Of those, there are thousands of lawyers who are willing to represent your Pennsylvania DUI case. So how does a person with no legal background sift through all of these lawyers to find the best DUI Attorney in PA?
If you don’t know what you are looking for, your never going to find it. That is I have put together this series- to help common citizens recognize the important traits of the best DUI lawyers. Before we get to that, we are tackling the question of Why do I need the best DUI attorney in Pennsylvania to handle my case? Last week we discussed the severity of Pennsylvania DUI Penalties and how a DUI charge can effect the rest of your life. Today we will deal with the question How technical are Pennsylvania DUI cases?
Highly Technical DUI Blood Testing Equipment
The short answer is that defending DUI cases (especially in Pennsylvania) requires a great deal of specialized technical knowledge. There are many different aspects, from the evidence to the laws, that make DUI cases very difficult to defend without the proper knowledge. In fact, it is often truthfully stated with no exaggeration that it is easier to defend a murder well than a DUI well. You just have to know a lot more.
DUI Tests- One of the most important pieces of evidence in any Pennsylvania DUI cases is the result of your blood or breath test. But just because the test report says your Blood Alcohol Content (BAC) is such and such, does not make it true. Everyone’s body is unique and there are a lot of variation. For example, there are some chemicals that your body naturally produces that breath machines might interpret as being drinking alcohol (ethanol). An expert DUI lawyer also needs to know about the inherit weaknesses of each type of test and possible sources of error and the limitations that every from of BAC testing has.
SFSTs- The Standardized Field Sobriety Tests (a.k.a DUI roadside tests) may seem very simple but they are also very technical. There is a specific methodology that needs to be followed when administering these tests to yield any scientific benefit. Sadly, according to expert research, 93% of the time officers incorrectly administer the DUI roadside tests. However, it takes a highly experienced expert to be able to challenge the inconsistencies in these tests.
Understanding Pennsylvania DUI Law- Pennsylvania DUI Law is very complex. There are different tiers and the penalties increase for repeat offenders. There are various legal options which may or may not be beneficial in your case. There are also various legal precedences which establish guidelines which need to be followed. For example, a blood test in and of itself is not admissible in court without the presentation of the person who administered the tests and without laying the proper legal foundation. There are also various constitutional issues that need to be examined like establishing whether or not there was probable cause to stop the driver in the first place.
Understanding Your Specific Situation- In my experience as a Pennsylvania DUI Lawyer who has represented several hundred clients, no two cases are the same. Every person is unique and so is their case. Some legal avenues are not applicable to certain people or situations. Some people like truck drivers and school teachers are in danger of losing their jobs. It requires a great deal of experience, care and attention to understand your concerns and your situation.
Beyond these aspects there are many other very technical aspects involved in Pennsylvania DUI cases. This is why it is in your best interest to take the time and investigate so you can find the best Pennsylvania DUI attorney to defend your case.
Every Friday we take a look at some of the most commonly asked questions about Pennsylvania DUI so we can clear up any misconceptions and provide you with the most up-to-date and accurate information about Pennsylvania DUI laws and related topics. Today:
Dear Pennsylvania DUI Lawyer,
I was charged recently with a DUI after the portable breath machine showed a BAC of .12. I only had a couple of drinks and that was over an hour before I drove.
In short, there are many issues with the breath machines used by the police in Pennsylvania. These machines would never be used by a scientist to measure blood alcohol because they are not specific to alcohol and if not calibrated correctly can create woefully inaccurate results. Besides, unlike the full evidentiary breath test devices, the ones used at roadside are not admissible under Pennsylvania law to prove a person’s BAC at trial. It can only be used if there is reasonable suspicion of DUI by the officer and only for purposes of determining whether or not there was enough probable cause to arrest someone and only if properly calibrated, maintained and properly used.
The truth is you need an experienced Pennsylvania DUI Lawyer who is specifically trained on these machines and can expose their weaknesses and flaws. All of the attorneys at The McShane Firm are certified as instructors on all of the breath machines used by police in central Pennsylvania. We own most of the machines the police use and can challenge faulty results with knowledge and experience.
If you would like to ask a question, please submit it via the contact us link.
Every Friday we will take a look at some of the most commonly asked questions about Pennsylvania DUI so that we can clear up any misconceptions and provide you with the most up-to-date and accurate information. Today:
Dear Pennsylvania DUI Lawyer,
My 20 year old son was charged with a DUI while he tested at .04. I thought .08 was the BAC limit for a DUI in Pennsylvania, am I wrong?
Pennsylvania has what it labels as a “zero tolerance” law for DUI for drivers under 21. That means anything above a .02 blood alcohol content will result in an accusation of being an underage driver being charged with a High Rate DUI (see our post The Legal Consequences for a Pennsylvania DUI for a more detailed description on Pennsylvania DUI Penalties for different categories .)
You should seek out a qualified DUI attorney because in my experience, often times these cases are very defendable. The breath testing devices are inaccurate and can give totally erroneous readings. Blood tests are also frequently not the true reading of BAC.
It might help you to read two of my recent posts:
-
Underage DUI in Pennsylvania and Underage Drinking in Pennsylvania
-
Underage Drinking and DUI in Pennsylvania: LOD and LOQ Defense
If you would like to ask a question, please submit it via the contact us link.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
The Government wants to install alcohol detectors in cars, but is that a good idea?
Schumer calls for alcohol detectors in vehicles
WASHINGTON — Sen. Charles E. Schumer said Thursday he’ll push for legislation to boost alcohol-detection technology in cars, which he said could greatly reduce drunk driving — especially for repeat offenders.
Basically the idea here is to develop technology that won’t allow a car to start if the driver has a BAC over .08. At first the technology will be voluntary and you can rest assured that the proponents of this bill plan to make this measure mandatory at some point. Senator Schumer goes on to say:
Anybody who’s opposed to this should be ashamed of themselves.
Well Senator Schumer I am opposed to this measure and I am not the least bit ashamed because I have facts that show why this is a bad idea.
1. Installing Alcohol Sensors on Cars Treats Everyone Like a Criminal
This measure is another way of saying, “Prove your innocence before you can drive”. I have blogged about the presumption of guilt in a DUI before and this is another measure that proves my point. Legislators backed by powerful lobbies are pushing through new laws that go against the fiber of civilized society and justice, the presumption of innocence- all for the benefit of private industry, meaning those who make the inhibition devices. There is A LOT of money there if it becomes mandatory. Here you can be perfectly innocent but you have to prove that before you can use your own car. What about false positives? What if the machine malfunctions? Why not just have a police officer follow me around all day to make sure I don’t murder someone? Wouldn’t that reduce the murder rate (unless someone flips out on the cop-stalker)? Why not search all of my grocery bags at the supermarket to make sure I didn’t shoplift? Where do you draw the line?
2. Current “Advanced” Technology is Pretty Crappy
After thousands of Pennsylvania DUI cases and many hours of training on breath testing technology and all forms of analytical chemistry, I have come to the educated and settled conclusion that the technology we currently have that could be placed in a car and is not invasive, but rather is passive, is total garbage. The machines are quirky and are not even specific to ethanol which is drinking alcohol. You can have an illegal BAC level after eating a slice of bread with some forms of testing:
or if your phone rings:
Last week I blogged about how Faulty Machines Lead to 400 DUI Convictions in D.C. Imagine having to drive your wife to the maternity ward or a critically ill next door neighbor to the hospital and the car doesn’t start due to a false positive. It happens more often than you might suspect. On top of that you are asking car manufactures, who keep recalling vehicles due to production faults, to mass produce these devices. Are they capable of doing it right? Who will calibrate them properly?
3. People Will Still Find Ways Around It
People are resourceful and will always find workarounds which will deem these devices in all practical effects useless. Its like when offices use a firewall to try to keep employees off Facebook and YouTube but those who want to will always find a way around it.
In my experience, I see this as a political tactic to appease special interest groups and a way for folks to make A LOT of money. I am of the opinion that laws should be based on hard and most importantly, objective evidence and validated science, not political pressure or profit.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
Just because someone blows a high number, doesn’t mean they are guilty of DUI. These breath machines are quirky and if not calibrated properly (a very common problem) they can yield artificially high measurements. They are not specific or selective for exclusively drinking alcohol or ETOH. Look what happened in our nation’s capital:
400 drunken-driving convictions in D.C. based on flawed test, official says
Nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.
D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police. The jailed defendants generally served at least five days, he said.
Not just a few machines, mind you, every single machine they used was improperly calibrated:
The District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was, Nickles said. All 10 of the breath test machines used by District police were wrong, he said. The problem occurred when the officer in charge of maintaining the machines improperly set the baseline alcohol concentration levels, Nickles said.
One officer’s mistake has caused hundreds of people to suffer. Some of them may have indeed been guilty and will probably get off the hook. Many of them were innocent and had to go through the embarrassment, distress and hardship of prison and other sanctions. Some of them may have lost their jobs and this may have affected their family lives. Innocent people’s rights and liberties have been taken away.
This is a real tragedy and real people have been affected.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
Every Friday we will take a look at some of the most commonly asked questions about Pennsylvania DUI so that we can clear up any misconceptions and provide you with the most up-to-date and accurate information. Today:
I was recently arrested for a DUI and taken to the station for testing. The machine was an Intoxilyzer 5000. I was told to blow into the machine and I did. The machine printed “Invalid Sample” and on the second go around it read “Invalid Test” on the tickets. The cops then said I refused the test and charged me with a refusal. What does this all mean?
The machine you are referring is the Intoxilyzer 5000. As a certified technician and owner of this machine, I know this machine inside and out. Here is some information to clear up your confusion:
Invalid Sample
I
nvalid sample means residual mouth alcohol detector went off. This means that the machine thinks that you still have alcohol in your mouth perhaps because you burped or you have GERD or a full 20 minute deprivation period hasn’t been achieved. The police should know that this is not a refusal. Instead, what they should do is wait 20 minutes and try again. This is NOT a refusal. Sometimes the machine will display “Invalid Sample” or “xxx” on the display unit, and an officer will say that it is a refusal in total contravention to the design of the machine and claim that the person was sucking or huffing or twirling the mouthpiece with his/her tongue. However, sucking or huffing would cause the steady tone that goes off when the machine is being used to stop emitting no sound and it would have read “Please blow” on the screen not “invalid sample”.
Invalid Test
There are three ways that gets printed on a card: (1) the start button is hit by the operator during the test causing an abort (2) the test card is removed from the printer (which wouldn’t be printed on the card because it has been removed) and (3) the purge pump is unable to purge the chamber-ambient or the chamber is flooded. This is NEVER EVER a refusal.
Unfortunately, often the police officers conducting these tests have not gone through enough training and make erroneous assumptions as in this case.
If you would like to ask a question, please submit it via the contact us link.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
Pennsylvania residents don’t trust self-regulating butchers, so why do they trust self-regulating police officers and technicians?
I came across an article about self-regulation that I would like to share:
Pennsylvania mulls handing weights and measures inspection to private sector
When consumers get a bad meal, they know it.
But getting shortchanged on a few ounces of ground beef might not be as readily detectable. And motorists likely don’t know if the gas pump is accurate.
That’s where weights and measures inspectors come into play to provide consumer protection. But the state Department of Agriculture is considering a plan to turn over inspections to the private sector.
The plan would allow employees of a business to perform inspections on devices for their bosses. A grocery store employee, for example, would make sure scales accurately show a consumer is getting a pound of ham at the deli counter.
So here is an example of the government being overloaded and shifting the responsibility of regulation to the people it’s supposed to be checking on. Unless watched, people can cheat, be negligent, or inaccurate or even just plain lazy. All of that can end up costing consumers at the pump and at the grocery store. I think most Pennsylvania residents would agree that this is a bad idea. What’s even more astounding? That Pennsylvania police officers do exactly the same thing and no one seems to notice, no one knows and no one cares.
That’s right. Those fancy breathalyzer machines and even the gas chromatographs used for DUI tests are not calibrated or checked by independent inspectors. In fact, in the case of breath testing, police departments themselves are responsible for checking and maintaining them. And they don’t even do a good job of it. I have seen many maintenance logs that were incomplete and did not follow the prescribed standards. I see hand written logs that show calibration results out of wack and also results that should have resulted in the machine being placed out of service; yet, they keep on testing. It’s self-regulation folks and once again, there is room for error, negligence, laziness and for a bad apple to do something wrong. The shocking part is that Pennsylvania residents and lawmakers are not outraged by this. I think we need to wake up and demand tougher standards for the police and make sure these standards are being enforced. People end up in jail because of these faulty readings.
This is an important issue we need to start thinking about, because at the end what’s worse, losing a couple ounces of meat or ending up in jail for a DUI because of an incorrect measurement?
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
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